The rules and referees guiding COVID-19 relief
An overview of budget reconciliation and the congressional parliamentarian.
Today, we’re covering two submitted topics, on two obscure—but related—elements of legislative lawmaking: budget reconciliation and the congressional parliamentarian. These topics are also timely. The upcoming COVID-19 relief package is expected to pass under budget reconciliation and the guidance of the Senate parliamentarian.
Budget reconciliation is a legislative “loophole” that allows the Senate to pass legislation by 51 votes, instead of the normal 60 votes required to overcome a potential filibuster and advance legislation. Sounds nice, right? But there’s a few catches. First, budget reconciliation can only be used three times a year. Second, the legislation has to apply to the federal budget.
Who determines if a bill fits the “federal budget” requirement? That would be the congressional parliamentarians. Consider them the nonpartisan, official rule-keepers of the House and Senate. If legislators played referee on their own rules, interpretations would easily turn into a partisan battle—so that’s where the parliamentarians step in.
While budget reconciliation and parliamentarians may be wonky topics, you’ll need to understand them to follow the upcoming COVID-19 relief legislation.
First, let’s look at the general process. Step 1 starts with the House and Senate passing a budget resolution. This is essentially a skeleton agreement that the bill is then built on top of. For 2021, this step has already happened. Bill specifics are then filled in by each chamber.
For the House, bills passed under budget reconciliation pass mostly as normal. The only stipulation is that the House Budget Committee is (usually) responsible for consolidating and presenting it to the chamber. The House usually moves faster than the Senate—they’re expected to pass their version of the 2021 bill next week.
Senate committees can either work off the House’s version, or they can draft their own. Either way, it ends up in the Senate Budget Committee, where it meets its first test: the Byrd Rule.
The Byrd Rule: Before the Byrd Rule was implemented, budget reconciliation was used to pass all sorts of things. Former Sen. Robert Byrd (D-W.Va.) drafted a rule stipulating that bills passed under budget reconciliation must address the federal spending and deficit, and contain no “extraneous matter.”
Obviously the phrase “extraneous matter” is open for interpretation. There are some limitations (for example, social security is off limits, and the deficit impact cannot be long term), but the rules are grey enough to open up budget reconciliation to things like health care expansion (the Affordable Care Act in 2010), tax cuts (Republican tax cuts in 2001, 2003, and 2018), welfare reform (1996), and possibly this year, increasing the minimum wage.
Lastly, of great importance, the Byrd Rule is technically federal law under the 1990 revision to the Congressional Budget Act. So while the rule can be open for interpretation, they can’t ignore it entirely.
The Byrd Rule only applies to the Senate. So provisions passed by the House can later be removed by the Senate Budget Committee or Senate parliamentarian under this rule.
After any issues in the Senate Budget Committee have been resolved, the bill heads to the Senate floor for 20 hours of moderated debate, and then is voted on. Normally, legislation before the Senate requires 60 votes override a filibuster and advance. Budget reconciliation only requires 51. And that is why budget reconciliation is such a big deal. Today, with an evenly divided Senate, it’s highly likely Vice President Kamala Harris would cast the tie-breaking vote on a reconciliation bill.
So why not use budget reconciliation for everything?
Another limitation of budget reconciliation is that it can only be used three times a year. Reconciliation bills can only cover federal spending, revenues, and the debt limit, and each of those three categories can only be brought up once a year. And often, spending and revenue are covered in the same bill, limiting the process to two bills a year.
Since budget reconciliation was introduced in 1980, it’s been used 21 times. The opportunity to pass legislation with 51 votes in the Senate is enticing—and one that political majorities often want to take advantage of. Because stimulus packages deal with both federal revenue and deficits, lawmakers are planning to use reconciliation to pass COVID-19 relief.
So who keeps track of all these rules?
Senators will often try to play referee themselves, but that job belongs to the Senate parliamentarian. Both chambers have their own parliamentarian, but the Senate parliamentarian has the final say on the budget reconciliation process. If you ever watch C-SPAN, the parliamentarians and their deputies are literally sitting there like referees over the floor proceedings.
Parliamentarians and their deputies are experts of congressional procedure. They are nonpartisan and appointed by congressional leaders. And while their rulings are nonbinding, the norm is to respect their decisions. Rarely in congressional history have members of Congress ignored the ruling of the parliamentarian.
Great, so what’s next for COVID-19 relief?
The bill is currently being developed in House committees, and is expected to be voted on next week. Then, it will head to the Senate, where it faces those committees and the Byrd Rule test. Democrats’ margin is slim in the Senate, so tweaks to the House proposal are inevitable. To follow along on the process, I recommend reading Beltway publications and newsletters: POLITICO and POLITICO Playbook, Washington Post, and the new, Punchbowl News.
Have questions of your own you want answered? Let me know!
Lastly, Texas has been on my mind this week. For those in a position to give, please consider doing so to mutual aid efforts across the state (e.g., Austin and Houston), or local foodbanks (helpful database here). Also consider checking out and donating to the Texas Tribune—here are some articles I found particularly helpful this week: